[Federal Register Volume 73, Number 98 (Tuesday, May 20, 2008)]
[Proposed Rules]
[Pages 29093-29094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11064]
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DEPARTMENT OF COMMERCE
National Oceanic Atmospheric Administration
15 CFR Part 923
[Docket No. 080416573-8574-01]
RIN 0648-AW74
Changes to the Coastal Zone Management Act Program Change
Procedures
AGENCY: Office of Ocean and Coastal Resource Management (OCRM),
National Ocean Service (NOS), National Oceanic Atmospheric
Administration (NOAA), Department of Commerce (Commerce).
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: NOAA intends to replace the Coastal Zone Management Act (CZMA)
program change regulations (15 CFR part 923, subpart H) and associated
guidance (OCRM's Program Change Guidance (July 1996)) with new
regulations at 15 CFR part 923, subpart H. This notice requests public
comment on the CZMA program change process that NOAA should consider
when developing a proposed rule to replace 15 CFR part 923, subpart H.
DATES: Comments on this notice must be received by August 18, 2008.
ADDRESSES: Please send comments as an attachment to an e-mail in MS
Word (WordPerfect is also acceptable), or in the body of an e-mail, to
[email protected]. Address all comments regarding this
notice to Mr. Kerry Kehoe, Federal Consistency Specialist, Coastal
Programs Division, Office of Ocean and Coastal Resource Management,
NOAA, 1305 East-West Highway, 11th Floor, Silver Spring, MD 20910.
Attention: CZMA Program Change Comments. Written comments may also be
sent to this address.
All comments received by the comment deadline and this Federal
Register notice will be posted at OCRM's federal consistency Web page
at: http://coastalmanagement.noaa.gov/consistency/rule.html.
FOR FURTHER INFORMATION CONTACT: Kerry Kehoe, Federal Consistency
Specialist, 301-713-3155 ext. 151, Office of Ocean and Coastal Resource
Management, NOAA.
SUPPLEMENTARY INFORMATION:
I. Background
The CZMA (16 U.S.C. 1451-1465) was enacted on October 27, 1972, to
encourage coastal States, Great Lake States, and United States
Territories and Commonwealths (collectively referred to as ``coastal
States'' or ``States'') to be proactive in managing the uses and
resources of the coastal zone for their benefit and the benefit of the
Nation. The CZMA recognizes a national interest in the uses and
resources of the coastal zone and in the importance of balancing the
competing uses of coastal resources. The CZMA is a voluntary program
for States. If a State elects to participate it must develop and
implement a coastal management program (CMP) pursuant to federal
requirements. See CZMA section 306(d)(16 U.S.C. 1455(d)); 15 CFR part
923. State CMPs are comprehensive management plans that describe the
uses subject to the management program, the authorities and enforceable
policies of the management program, the boundaries of the State's
coastal zone, the organization of the management program, and related
State coastal management concerns. Thirty-five coastal States are
eligible to participate in the federal coastal management program.
Thirty-four of the eligible States have federally approved CMPs.
An important component of the CZMA program is that State CMPs are
developed with the full participation of state and local agencies,
industry, the public, other interested groups and Federal agencies. See
e.g., 16 U.S.C. 145 1(i) and (m), 1452(2)(H) and (I), 1452(4) and (5),
1455(d)(1) and (3)(B), and 1456. Program changes are changes to NOAA-
approved components of State CZMA programs and new program components.
There are five program approval areas (includes related changes to, or
new, enforceable policies related to the five areas).
The five areas are:
1. Uses subject to program;
2. Coastal zone boundaries;
3. National interest;
4. Special Area Management Plans; and
5. Authorities & Organization.
Program changes are important for several reasons. The statute
requires submission to NOAA and NOAA approval (16 U.S.C. 1455(e));
state programs are not static; laws and issues change requiring
continual operation of the CZMA State-Federal partnership. The State-
Federal partnership is a cornerstone of the CZMA. The primacy of state
CZMA decisions and the CZMA federal consistency requirement is balanced
with adequate consideration national interest components, Federal
agency input into the content of State programs, and NOAA approval.
In their federally approved CMPs and state CZMA decisions states
must consider national interest areas of the CZMA to benefit national,
not just local interests. In addition to the national interest in
comprehensive coastal management by states, states must give priority
consideration to coastal dependant national interest activities:
Defense, energy, ports, transportation. For example, some of the more
important issues NOAA must consider when evaluating program changes
include whether the proposed change would: Affect CZMA national
interest areas; seek to regulate federal agencies or areas outside
state jurisdiction; be preempted by federal law; discriminate against
particular coastal users or federal agencies; be enforceable under
State law; raise issues under the National Environmental Policy Act
(NEPA), Endangered Species Act (ESA), National Historic Preservation
Act (NHPA), etc.
Program changes are also important because the CZMA has a strong
public participation role, combined with the State-Federal partnership.
NOAA can only approve CMPs and changes to CMPs after Federal agencies
and the public have an opportunity to comment on whether proposed new
or revised ``enforceable policies'' are appropriate under the CZMA
authority and other federal and state legal requirements. An
enforceable policy is a State policy that is legally binding under
State law (e.g., through constitutional provisions, laws, regulations,
land use plans, ordinances, or judicial or administrative decisions)
and by which a State exerts control over private and public coastal
uses and resources, and which are incorporated in a State's federally
approved CMP. See 16 U.S.C. 1453(6a). This means that enforceable
policies must be given legal effect by State law and cannot apply to
Federal lands, Federal waters, Federal agencies or other areas or
entities outside a State's jurisdiction, unless authorized by Federal
law. Also, the CZMA section 307 federal consistency provision requires
that state enforceable policies are the standards that apply to Federal
agency activities, federal license
[[Page 29094]]
or permit activities, outer continental shelf plans and federal
financial assistance activities. 16 U.S.C. 1456. Therefore, Federal
agencies and the public must have an opportunity to review proposed
changes to a State's enforceable policies.
Program changes are also important because the CZMA federal
consistency provision is triggered only if the federal action has
reasonably foreseeable coastal effects and a State has applicable
policies approved by NOAA that are legally enforceable under state law.
It is therefore important for states to submit to NOAA for approval
timely updates to CZMA enforceable policies.
II. Need for Revised Program Change Regulations
The current program change regulations, 15 CFR part 923, subpart H,
have been in place since the late 1970's. In 1996, NOAA made minor
revisions to the regulations and also issued program change guidance
that further elaborated on program change requirements. Over the years,
states and NOAA have, at times, found the regulations difficult to
interpret. For example, determining: When a program change is
``routine'' or an ``amendment;'' when a program change is
``substantial;'' what level of state analysis is required; when
preliminary approval can be granted by NOAA.
In addition, the CZMA was revised in 1990, in part, to place
greater emphasis on state CMP enforceable policies. This has led to the
submission to NOAA of many more updates to CMPs. This increase in
program change submissions has furthered the complexities of the
current program change regulations. States and NOAA have, therefore,
recognized the need to clarify the program change procedures and to
provide a more administratively efficient submission and review
process, while still addressing the importance of program changes, as
discussed above.
III. Action Requested From the Public
NOAA requests input from states, federal agencies and the public on
revised program change regulations. Some of NOAA's goals in revising
the program change regulations that reviewers should consider are:
1. Establishing a clearer and more efficient and transparent
process for program change review;
2. Describing clearer approval/disapproval criteria and how these
apply;
3. Using the statutory language of the CZMA, including time lines,
extensions, and preliminary approval;
4. Keeping the ``routine'' concept to streamline the process for
truly routine changes, but do away with ``routine program changes
(RPCs)'' and ``Amendments'' and replace with just ``program changes;''
5. Removing the ``substantial'' evaluations currently done by
states and replace with just describing what the change is to the
program. Further evaluations (by states or NOAA) would be for specific
CZMA, NEPA, ESA, NHPA, etc., purposes, e.g., is a NEPA Environmental
Assessment or Environmental Impact Statement, or ESA consultation
needed;
6. Establishing use of NEPA categorical exclusions;
7. Submitting underline/strikeout documents showing changes to
previously approved policies; and
8. Creating a program change checklist that states would submit to
ease state and NOAA paperwork burdens and promote consistent
submissions and NOAA analyses.
Comments received by NOAA will help to develop a proposed rule for
15 CFR part 923, subpart H. Any proposed changes to the CZMA program
change regulations would be published in the Federal Register following
compliance with the Administrative Procedure Act and other relevant
statutes and executive orders.
Dated: May 13, 2008.
John H. Dunnigan,
Assistant Administrator for Oceans and Coastal Zone Management.
[FR Doc. E8-11064 Filed 5-19-08; 8:45 am]
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